Case Note & Summary
The appellant, Soumya, wife of Johny, filed an appeal under Section 55 of the Divorce Act, 1869, against the judgment and decree dated 27.03.2014 passed by the Principal Judge, Family Court, Bangalore, in M.C.No.4066/2013, rejecting her application under Section 36 of the Divorce Act for pendente lite alimony. The husband had filed a petition under Section 18 of the Divorce Act seeking a declaration that his marriage with the wife be declared null and void. After service of notice, before filing her statement of objections, the wife filed an application under Section 36 seeking interim maintenance of Rs.15,000 per month and Rs.25,000 towards litigation expenses. The husband did not file any objections to this application. The Family Court, however, rejected the application on the ground that the wife had not revealed whether it was her first or second marriage, and unless she was lawfully married to the petitioner for the first time or there was legal termination of a previous marriage, there would be no liability on the husband to maintain her. The High Court, in appeal, held that the Family Court erred in rejecting the application without considering the merits, especially when the husband had not filed any objections. The court observed that the wife is entitled to interim maintenance even if the validity of the marriage is disputed, as the right to maintenance arises from the relationship and not merely from the legality of the marriage. The High Court set aside the impugned order and remanded the matter to the Family Court for fresh consideration on merits, directing that the application be restored and decided afresh after hearing both parties. The appeal was allowed.
Headnote
A) Family Law - Interim Maintenance - Section 36 Divorce Act, 1869 - Entitlement to Pendente Lite Alimony - The wife filed an application for interim maintenance of Rs.15,000 per month and litigation expenses of Rs.25,000 under Section 36 of the Divorce Act, 1869, in a nullity petition filed by the husband under Section 18 of the Act. The Family Court rejected the application solely on the ground that the wife had not disclosed whether it was her first or second marriage, and that unless she was lawfully married, there was no liability to maintain her. The High Court held that the Family Court erred in rejecting the application without considering the merits, especially when the husband had not filed any objections. The court observed that the wife is entitled to interim maintenance even if the validity of the marriage is disputed, as the right to maintenance arises from the relationship and not merely from the legality of the marriage. The matter was remanded for fresh consideration on merits. (Paras 1-5) B) Family Law - Procedure - Rejection of Application Without Hearing - The Family Court's order was set aside as it was passed without giving the wife an opportunity to be heard on the merits of her application. The High Court noted that the husband had not filed objections, and the court could not suo motu raise a ground not pleaded by the husband. The application was directed to be restored and decided afresh after hearing both parties. (Paras 4-5)
Issue of Consideration
Whether the Family Court was justified in rejecting the wife's application for pendente lite alimony under Section 36 of the Divorce Act, 1869, on the ground that she had not disclosed whether it was her first or second marriage, without considering the merits of the application and in the absence of objections from the husband.
Final Decision
The appeal is allowed. The impugned order dated 27.03.2014 passed by the Principal Judge, Family Court, Bangalore, in M.C.No.4066/2013 is set aside. The matter is remanded to the Family Court for fresh consideration of the wife's application under Section 36 of the Divorce Act, 1869, on its merits, after hearing both parties. The application shall be restored to its original number.
Law Points
- Interim maintenance
- pendente lite alimony
- Section 36 Divorce Act 1869
- entitlement irrespective of validity of marriage
- prima facie case
- no objections filed
- rejection without hearing
- remand
